Lead Opinion
Elaintiff appeals the Court of Claims’ order granting the University of Michigan Regents (the university) summary disposition. MCR 2.116(C)(8) and (10). We affirm.
On December 12, 2007, plaintiff was injured in a car accident with a student, Samuel Brennan, on the University of Michigan’s campus. The student was driving a car owned by the university, while on university business. On May 7, 2008, plaintiffs counsel sent a letter to the university indicating that plaintiffs counsel intended to represent plaintiff in a lawsuit over the car accident. On October 31, 2008, plaintiff filed a notice of intent to file a claim in the Court of Claims that was signed by plaintiff and plaintiffs counsel. After plaintiff filed an action against Brennan and the university, the trial court granted summary disposition in favor of the university because plaintiff had not complied with MCL 600.6431(3).
The language of MCL 600.6431 clearly states the steps a plaintiff must take in order to make a claim against the state:
(1) No claim may be maintained against the state unless the claimant, within 1 year after such claim has accrued, files in the office of the clerk of the court of claims either a written claim or a written notice of intention to file a claim against the state or any of its departments, commissions, boards, institutions, arms or agencies, stating the time when and the place where such claim arose and in detail the nature of the same and of the items of damage alleged or claimed to have been sustained, which claim or notice shall be signed and verified by the claimant before an officer authorized to administer oaths.
(3) In all actions for property damage or personal injuries, claimant shall file with the clerk of the court of claims a notice of intention to file a claim or the claim itself within 6 months following the happening of the event giving rise to the cause of action.
The filing requirement is a condition precedent to sue the state. See Reich v Hwy Comm,
Plaintiff also argues that the state must show prejudice when a plaintiff does not comply with a statutory filing requirement. But in Rowland, the Michigan Supreme Court overturned several cases that had required the state to show actual prejudice when a plaintiff failed to comply with a statutory filing requirement. Rowland,
We recognize that Rowland dealt with a different notice requirement than does this case. There does not appear to be any published decision of either this Court or the Supreme Court that definitively determines whether the Rowland rationale should also be applied to the notice requirements of MCL 600.6431. Indeed, two justices of the Supreme Court disagreed on this point in separate statements to an order denying leave to appeal in Beasley v Michigan,
We conclude that Justice CORRIGAN’S view represents the better interpretation
In sum, plaintiff did not comply with the plain language of the filing requirement of MCL 600.6431(3). Subsection (3) clearly requires that a plaintiff with a personal injury claim against the state must file a notice of intention to file the claim or the claim itself with the clerk of the Court of Claims within six months of the event giving rise to the claim. Plaintiff did not file her notice of intention to file a claim with the Court of Claims until several months after the six-month deadline had passed. Accordingly, the Court of Claims properly granted summary disposition to the university.
Affirmed. Defendant University of Michigan Regents may tax costs.
Notes
Judge Sawyer acknowledges that he was previously a member of a Court of Appeals panel that issued an opinion that reached a different conclusion. Cunmulaj v Chaney, unpublished opinion per curiam of the Court of Appeals, issued February 12, 2009 (Docket Nos. 282264 and 282265). Specifically, that opinion reached the conclusion that “[t]here is no reason to extend our Supreme Court’s holding [in Rowland] to overturn the previous standard of substantial compliance with statutory notice requirements in other statutes.” Id. at 3. Because Cunmulaj is an unpublished opinion, it is of course not precedentially binding. MCR 7.215(C)(1). Judge Sawyer, upon giving the matter further consideration, is now persuaded that Cunmulaj erroneously decided this point and disavows that opinion to the extent that it conflicts with the opinion in the case at bar.
Dissenting Opinion
(dissenting). The majority concludes, on the basis of Rowland v Washtenaw Co Rd Comm, 477 Mich 197;
Because Rowland v Washtenaw Co Rd Comm,477 Mich 197 ;731 NW2d 41 (2007), did not construe the language in MCL 600.6431(3), and because our Supreme Court has evidently decidednot to extend the holding in Rowland to MCL 600.6431(3), I am not prepared to disavow May v Dep’t of Natural Resources, 140 Mich App 730 ;365 NW2d 192 (1985). In May, this Court held that a plaintiffs claims are not barred by failure to comply with MCL 600.6431(3) unless the defendant established that it was prejudiced by the noncompliance. May has not been reversed or explicitly overruled.
Rowland interpreted MCL 691.1404(1), which differs from the statute at issue here, MCL 600.6431(3). MCL 691.1404(1) provides that compliance with the notice provision is “a condition to any recovery for injuries sustained by reason of any defective highway;” however, MCL 600.6431(3) does not contain comparable “recovery precondition” language. More importantly, our own Supreme Court does not appear to be prepared to extend the holding in Rowland to MCL 600.6431(3). In Beasley v Michigan,483 Mich 1025 ;765 NW2d 608 (2009), the Michigan Supreme Court denied an application for leave to appeal relative to an order of this Court that had denied leave to appeal, which in turn pertained to an order by the Court of Claims denying summary disposition to the state. As reflected in a concurring opinion issued by Chief Justice Kelly in Beasley, the state brought the motion for summary disposition on the basis that the plaintiff, who had been injured in a motor vehicle accident involving a state-owned vehicle, failed to comply with the notice requirement of MCL 600.6431(3). Thus, while I recognize that Supreme Court orders denying leave do not have precedential value, the order does appear to signal a mindset that Rowland is inapplicable to MCL 600.6431(3)....
Until the Supreme Court decides to substantively address the impact of Rowland on MCL 600.6431(1), which I encourage it to do as soon as possible, I will continue to recognize and respect this Court’s decision in May. In my opinion, it defies logic to dismiss plaintiffs’ claims here, where in Beasley the plaintiff is being permitted to proceed in the Court of Claims with the apparent blessing of the Supreme Court.
I would reverse the order granting summary disposition in favor of the university. While in some cases under MCL 600.6431(3) a remand for a determination whether a defendant can establish that it was prejudiced by a plaintiffs failure to file a claim with the Court of Claims within six months of the accident will be warranted, such a remand in this case is not necessary. The accident occurred on December 12, 2007. On May 7, 2008, plaintiffs counsel sent a letter to the university, addressed to the office of legal counsel, indicating that plaintiffs counsel intended to represent plaintiff in a lawsuit over the accident. On May 28, 2007, a senior claims representative of the University of Michigan Risk Management Services sent a letter to plaintiffs counsel acknowledging counsel’s letter and indicating that the university would conduct a full investigation into the accident. The representative also requested additional information about the accident. The university’s counsel was also provided a copy of the letter from the representative. Clearly, the university had actual knowledge of plaintiffs intention to file a claim within six months following the accident. Under these circumstances, I would remand for trial.